Cannabis in the workplace | EAPA-SA
As per the 2018 Constitutional Court judgment, adult South Africans are now permitted to cultivate, possess and use cannabis in a private place (this does not necessarily have to be a dwelling) for personal consumption.  This case, however, does not cover the decriminalisation of cannabis in the workplace, leaving many unanswered employment-related questions. 1

Most employers have policies dealing with alcohol and drug abuse. These may vary depending on the industry and the nature of employee’s duties, but generally employers adopt a zero-tolerance approach to illegal drugs.  While it is likely to be difficult for an employee to argue that the workplace is a private space, particularly given that the use of cannabis in public, or in the presence of non-consenting adult persons, is not permitted, the more difficult issue arises in the case of employees using cannabis in private, outside of the workplace, and then reporting for duty under the influence. The fact that cannabis may be used by an employee at home does not mean that employees are entitled to come to work under the influence or with their ability to work impaired.  Yet, it appears that the tests for cannabis consumption cannot accurately determine the degree of impairment of the employee to do his or her job. 2

“Unlike alcohol, the effects of cannabis on an employee’s ability to perform his or her duties are less well known​.”
Unlike alcohol, the effects of cannabis on an employee’s ability to perform his or her duties are less well known and are likely to be more complicated to detect. Cannabis can, however, affect an employee’s occupational capacity in various ways.  These include performing tasks more slowly, performing poorly when handling routine or monotonous tasks, difficulty in taking instructions from superiors, difficulty in making crucial decisions -particularly in a high risk situation – and difficulty in operating machinery or motor vehicles. However, due to the discrepancy between effect and trace, employers should be cautious not to subject an employee to undue testing or corrective action in the interest of workplace safety, where there are no clear legal grounds to do so. 3

While testing for alcohol consumption is relatively simple, using a breathalyser test, when it comes to cannabis use testing is not as easy and may not be appropriate.  Though blood, urine and hair tests are available to test for cannabis use, these are deemed to be medical tests and medical testing of employees for any substance is regulated by Section 7 of the Employment Equity Act. This details that medical testing of employees is permitted only if it is justifiable in the light of medical facts, employment conditions, policies and benefits or the stipulated requirements of the employee’s job.

Any workplace policy that addresses the use of cannabis would have to take into account factors such as the nature of the business, employee’s specific duties, testing consent, circumstances for committing offenses and any history of drug-related incidents. Any employer wishing to institute random testing for cannabis would have to ensure that the testing is voluntary, confidential and not motivated by victimisation or unfair discrimination.

“When it comes to testing for cannabis use, the measures for alcohol testing are not appropriate or as simple…”

As with alcohol abuse, an employer may take disciplinary action against an employee without a test, where the effects of cannabis are clearly observable and it is clear that the employee is too impaired to do their job or presents a risk to other employees in the workplace. The difficulty employers will face with employees using cannabis lies in the complexities around proving that an employee’s ability to work was impaired or that the employee was under the under the influence whilst at work.

 

“Considering that cannabis is no longer an illegal drug, organisational policies ought to be adapted…” 
Considering that cannabis is no longer an illegal drug, organisational policies ought to be adapted to cover employees being under the influence of mind-altering substances. Alternatively, alcohol usage policies should be expanded to include cannabis.
How should employers be responding to CBD use in the workplace?

There are two natural compounds found in cannabis and hemp that are currently getting a lot of media exposure:  CBD (Cannabidiol) and THC (Tetrahydrocannabinol).  THC and CBD are found in both marijuana and hemp. Marijuana contains much more THC than hemp, while hemp contains a lot of CBD. CBD and THC have the same chemical formula – 21 carbon atoms, 30 hydrogen atoms, and two oxygen atoms. The difference lies in the way the atoms are arranged.  It is this that gives CBD and THC different chemical properties, so that they each affect the body differently.  Humans have two types of cannabinoid receptors in our bodies.  Both CBD and THC work with these receptors that release neurotransmitters in your brain. They can affect things like pain, mood, sleep, and memory.

THC is the main psychoactive compound in marijuana.   THC binds with receptors – mostly in the brain – and can make you feel euphoric and give you a so-called “high”.  CBD is a non-intoxicating compound that can be extracted and combined with oil for ingestion or inhalation through the use of a vaporizer. In recent months, major retailers in many countries, including South Africa, have been marketing and selling CBD oil, derived from hemp, as a natural remedy for pain, anxiety, insomnia, and other ailments. 4

We spoke to social worker, Carol Venter, Client Services Manager at ICAS, Southern Africa for her professional opinion on CBD products and usage in the workplace.

Q: How should organisations approach the use of CBD products in the workplace?

CBD products, such as CBD oils, have been reduced from being classified as Schedule 7 to Schedule 4 drugs in South Africa, so CBD is seen as a prescription medication.  Organisations should make allowance for CBD use in the workplace as they would with any prescription medication, in line with their medical policy, where employees are expected to disclose that they are taking prescription medication.

There have been companies who have jumped on the band wagon to manufacture ranges of CBD products that may not be lawfully formulated. The retailers who, until recently, have stocked legitimate CBD products on their shelves are now obliged to remove these as over the counter “medications.”  In May 2019, I attended a presentation by the Medical Research Council who made it clear that while there is much research underway, further research is needed to fully understand CBD’s properties and side-effects.  CBD manufacturers may not claim that their product is able to treat or cure ailments.  It can be offered for general health purposes and maybe the relief of minor symptoms.  20mls per day, or less, is the maximum daily dose of CBD that may be prescribed.

It is such a complex and controversial topic but guided by the Occupational Health and Safety Act, which stipulates that the responsibility is on the employer to ensure that the workplace is a safe one, a comprehensive and clear workplace policy will allow an employer to outline their stance, accommodations to be made for those on prescription / medical marijuana and prescribed CBD preparations,  and highlight how employees who find themselves needing assistance with any substance will be supported if they come forward.

Q:  Is condoning the use of CBD a “gateway” for cannabis use?

In my humble opinion it is not a gateway drug, because legally formulated CBD, with only trace amounts of THC in the formulation, is not scientifically able to give its user a high.  So, its use will not lead to the use of cannabis. What’s more CBD is typically taken as oil from a dropper, as opposed to marijuana typically being smoked, which further serves in it not leading to cannabis use. Interestingly, as an aside, in May 2019 the Medical Research Council cited that only 56 South Africans, in total, have ever been given a prescription for medical marijuana.

All in all, there is still so much research to be done and so much education needed in the workplace.  Employers and employees alike do not fully understand the new legislation around the legalization and decriminalisation of cannabis for personal use and cultivation.  It certainly is both a worrying and exciting time in the field!

All in all, there is still so much research to be done and so much education needed in the workplace. 

EAPA-SA President, Thiloshni Govender, who is keenly interested in following this issue adds, The debate should revolve around THC and its effects on work ability. Medical use is very different from smoking /eating or drinking organic cannabis. Then there is the issue of CBD which is psychoactively different from THC. I hope that research will establish a baseline level of THC in the body that would negatively impact ability to work (both physically and cognitively) but I am not sure if its possible. If this is established, then we can focus on isolating testing for THC in the workplace. Until we reach this point of understanding workplace policy and safety practice should focus on work performance.

Watch this space! We will bring you pertinent updates as progress is made in research and the formulation of workplace policy. EAPA-SA will be calling for presenters to address the issues surrounding the use of cannabis in the workplace at Eduweek 2020. If you are interested in presenting on this subject at Eduweek 2020 or being part of the panel for debate, please contact us at info@eapasaeduweek.co.za